Amici Curiae: Why Edgar Schmidt is Suing the Department of Justice

Edgar Schmidt is a senior lawyer with the Department of Justice. That is, he used to be a senior lawyer with the Department of Justice until he was suspended on December 14th, 2012 after suing the Department by alleging that it has been conducting inadequate reviews to ensure proposed legislation complies with the Canadian Charter of Rights and Freedoms (the “Charter”).

The Department of Justice plays an important role in Canadian policy-making: it reviews proposed bills and legislations to make sure they are compatible with human rights legislation or the Charter. If the proposed legislation does not comply, the Department reports the inconsistency to the House of Commons. At least that’s the theory.

Section 4.1 of the Department of Justice Act outlines how regulations and bills are examined, which specifically provides that “the Minister shall…examine every regulation…and every Bill introduced… in order to ascertain whether any of the provisions thereof are inconsistent with the purposes and provisions of the Canadian Charter of Rights and Freedoms and the Minister shall report any such inconsistency to the House of Commons at the first convenient opportunity.”

Based on this provision, the Minister of Justice has a duty to report to the House of Commons any inconsistency a bill or regulation has with the Charter. In addition, the Minister of Justice has a duty to report any inconsistency a bill or regulation has with the CanadianBill of Rights under section 3 of the Canadian Bill of Rights along with similar duties under section 3(2) and 3(3) of the Statutory Instruments Act.

The issue is that the Department of Justice has been interpreting these duties in a loose – and arguably unlawful – way.

Schmidt alleges that since 1993, with the knowledge and approval of the Deputy Minister, the Department of Justice has applied a different standard than that required under section 4.1 of the Department of Justice Act. Whereas the statute requires officials to report any such inconsistencies with the Charter or the Bill of Rights to the House of Commons, a different interpretation has been followed in the Department by qualifying such inconsistencies into two distinct categories: manifestly or certainly inconsistent.

Schmidt explains how certainly inconsistent provisions are dealt with in the Department in his statement of claim:

“14. Specifically, with regard to its examination under the Department of Justice Act in relation to the Charter, if it is in the opinion of counsel in the Department that:

a. a provision is likely or even almost certainly inconsistent with the Charter – even if the probability of inconsistency is 95% or more -, but

b. some argument can be reasonably be made in favour of its consistency – even if all arguments in favour of consistency have a combined likelihood of success of 5% or less-,

no advice is given to the Deputy Minister that he or she – unless he or she forms a different opinion – has a duty to communicate the concern to a Clerk of the Privy Council.”

Based on these allegations, the Department of Justice is approving proposed legislation that has only the mere possibility of being consistent with the Charter or the Bill of Rights – even if that possibility is an extremely remote one. In contrast, Schmidt argues that the statutory examination provisions require the Department of Justice to determine whether the proposed legislation is actually consistent with the Charter or the Bill of Rights – not on the possibility of whether or not the legislation could be consistent.

Essentially, rather than public officials doing their due diligence to make sure proposed laws comply with our protected human rights, they are passing questionable laws and putting the onus on the Canadian public to challenge the legislation for infringements of the Charter or the Bill of Rights. It’s a frightening proposition. If Schmidt’s allegations are proven to be true, it could mean that Canada is rife with laws that are inconsistent with human rights, if only because of the failings of a government watchdog and the limited resources of a legal system unable to rectify them all.